LawFlash

In keeping with its recent recommendations to CMS, the Office of Inspector General for the US Department of Health and Human Services (OIG) is recommending increased oversight and compliance reporting requirements for hospice, ironically while CMS is concurrently soliciting stakeholder input on easing or streamlining reporting requirements, or processes to monitor compliance with agency rules and regulations.

The OIG recently released a pair of inspection reports on deficiencies in hospice oversight by the Medicare program. These reports appear to build on a body of hospice industry evaluations conducted by the OIG that focus on previous years and reflect a lack of a balanced and contextualized assessment, according to many in the industry who point to the OIG’s exclusive focus on the negative findings associated with a small minority of hospices. Stakeholders remain concerned that the negative press attention garnered by these OIG reports will overshadow the many worthwhile efforts by hospice to promote compassionate, high-quality and cost-effective end-of-life care. Nonetheless, consistent with its mission to strengthen Medicare safeguards, the OIG will most certainly continue its focus on the hospice industry as an increasing number of beneficiaries elect hospice care. For the most part, CMS agreed with OIG’s recommendations around increased hospice oversight.

In its first report, Hospice Deficiencies Pose Risks to Medicare Beneficiaries, OIG details the results of onsite hospice surveys conducted by either state surveyors, or accrediting organizations during a five-year period from 2012 to 2016. The second report, Safeguards Must be Strengthened to Protect Medicare Hospice Beneficiaries from Harm, took a much more narrow look, examining only 12 instances where surveyors had determined hospice patients were harmed due to “vulnerabilities in the Centers for Medicare & Medicaid Services’ (CMS’s) efforts to prevent and address” poor care to beneficiaries, abuse by caregivers or others, and “the hospice failing to take action.” Both reports appear to build on the recommendations set out for CMS in the OIG’s 2018 Portfolio on hospice program integrity and quality care.

OIG found that over 80% of the 4,563 hospices that participated in Medicare during the time of the study had at least one deficiency and a third had complaints filed against them. Many of the deficiencies related to paperwork and had no direct bearing on quality of care. While this percentage may appear excessively high, it is not atypical when compared with other healthcare industry sectors. For example, a 2008 OIG Memorandum Report on trends in nursing home deficiencies and complaints from 2005 to 2007 found that while over 91% of nursing homes surveyed had deficiencies, only 17% were cited for actual harm, or immediate jeopardy deficiencies.

With respect to the OIG’s hospice reports, the most common deficiencies included poor care planning, mismanagement of aide services, and inadequate assessment of beneficiaries, while instances involving improperly vetting of staff and inadequate quality control were also noted. “Poor performers,” described as having at least one serious deficiency or at least one substantiated severe compliant, represented 18% of all hospices surveyed nationwide in 2016. Although downplayed in the first of its two reports, the number of hospices with a serious deficiency decreased 23% from 2015 to 2016, though OIG reported those hospices with a serious deficiency identified in surveys nearly quadrupled from 2012 to 2016.

OIG also examined a dozen cases of harm to beneficiaries who received hospice care during the study period. Insufficient reporting requirements for hospices, limited reporting requirements for surveyors, and barriers that beneficiaries and caregivers face in making complaints were cited as underlying causes or “vulnerabilities” in CMS’s efforts to prevent and address beneficiary harm. To that end, in both of its reports, OIG observed that “CMS cannot impose penalties (i.e., intermediate sanctions), other than termination, to hold hospices accountable for more serious condition-level deficiencies that may result in patient harm.”

The OIG reports provide for a number of recommendations that include seeking legislative authority to allow Medicare to impose financial penalties for serious violations in lieu of program termination, expanding deficiency data that accrediting organizations report to CMS, and taking steps to post state survey reports and survey information from accrediting organizations (after statutory authority is obtained) to Hospice Compare. CMS disagreed with the OIG’s recommendation to include state survey reports on Hospice Compare reasoning that this could be misleading to consumers because of the current prohibition against the public sharing of survey information by accrediting organizations.

Recommendations aimed at mitigating patient harm (with which CMS agreed) include bolstering the requirements for educating hospice staff to recognize and to report signs of abuse, neglect, and harm; monitoring the surveyors’ use of immediate jeopardy citations; strengthening guidance for surveyors on reporting crimes to local law enforcement; and improving the process for beneficiaries and caregivers to make complaints. CMS partially agreed with the OIG’s last recommendation related to making it easier for beneficiaries and caregivers to make complaints against hospices stating that the agency will seek to improve the complaint making process “within regulatory constraints and with available resources.”

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